The New Airline Announcement

In my recent travels, I’ve noticed that pilots and flight attendants have modified their pre-flight announcements. We no longer hear about how it is mandatory to wear a face mask that covers your nose and chin and how “neck gaiters” don’t cut it. Instead, the new announcement goes something like this:

“Due to a recent FAA announcement, face coverings are no longer mandatory on domestic flights. Whether passengers decide to wear a mask is a matter of personal choice. We ask that you respect the choices made by other passengers.”

In short, it’s pretty clear that the airlines think the skies aren’t that friendly anymore, and that they need to lecture us on how to behave lest arguments and fisticuffs break out between masked and non-masked passengers.

The fact that the airlines see a need to make that kind of personal behavior statement is weird and sad, but you can’t blame them: there have been multiple incidents of violent behavior by airline passengers in recent months. For what it’s worth, though, I’m not seeing any inclination by fellow passengers to mix it up over masks. Instead, there seems to be a kind of COVID exhaustion at work. Everyone on both sides seems to want to move on, rather than engaging on mask issues.

Let’s hope that this traditional American “live and let live” ‘tude continues to prevail and even spreads to encompass non-COVID issues, too. That would be a refreshing change.

Ohio — The Library State

The U.S. Senate and Ohio gubernatorial races got most of the attention in Tuesday’s Ohio primary election. But the election also featured a series of levies, bond issues, and other decisions to be made by Ohio voters. And when you drill down into the results, you find something striking: libraries kicked butt.

In fact, library issues went a perfect 6-0 in the election, and all of them passed resoundingly — garnering, on average, approval votes from 71 percent of voters. In contrast, many school levies and bond issues went down to defeat.

Why do Ohioans vote overwhelmingly for libraries? A representative of the Ohio Library Council says its because Ohioans like the services they offer, and she speculates that the free COVID test kits offered at Ohio libraries during the pandemic might have played a role. I don’t know about the test kits, but I do think that the pandemic helped to drive home how important it is to have a place where you can find books to read, videos to watch, and CDs to listen to while you are social distancing. More generally, I think people like the community element of libraries. In many parts of Ohio, libraries are a source of local pride, and also one of the connections that hold communities together and allow neighbors to see each other. And library issues typically aren’t breaking the bank in terms of what they are asking.

I’m a big library supporter, and we are big-time library users. I think libraries are an important part of the fabric of this country, and I’m glad to see that my fellow Ohioans agree with that sentiment.

Changing Party, Changing State

Yesterday Ohio held its primary election. There was a fierce contest on the Republican ballot for the nomination to replace retiring Senator Rob Portman, a moderate. Most of the candidates who were vying for the nomination, in contrast, were much more on the conservative side of the ledger, seemingly trying to “out-Trump” former President Trump. J.D. Vance, the author of Hillbilly Elegy who was endorsed by Trump, won the primary with just over 30 percent of the vote. Vance will now face Democrat Tim Ryan in November.

The Republican primary for Senate leaves me thinking about just how much the Republican Party in Ohio has changed in my lifetime. Shortly after we graduated from college, we moved to Washington, D.C., where I got a job as a press secretary and legislative aide to Rep. Chalmers P. Wylie, shown above, a Republican who represented part of the Columbus metropolitan area and some of the surrounding rural counties. Mr. Wylie had fought valiantly in World War II in the European theater and been decorated for bravery; after the war he earned his law degree and then worked for years in various city and state public service jobs before being elected to Congress in 1967 and ultimately serving 13 two-year terms.

Mr. Wylie was a quiet, friendly, unassuming person who was the quintessential moderate Republican, very much like Senator Portman. Mr. Wylie didn’t seek the limelight, didn’t make bombastic speeches on the House floor, and had many friends on the Democratic side of the aisle. He was more interested in trying to get things done and serving his constituents than making headlines. To him, “compromise” was not a dirty word, but rather than essence of the political process. His philosophy, expressed to me in many ways when we worked late into the night answering constituent mail, was that you never burned your bridges and that the people you represented, and the country, were always better served by your engaging with the other side, rather than berating them. It’s hard to imagine him in politics now, where his gentle approach would stick out like a sore thumb.

At the time I worked for him, though, Mr. Wylie wasn’t alone. There were other moderate Republicans in Congress from Ohio, and Ohio had a reputation for producing moderate politicians in both parties. But the party has changed and the state has changed to the point where Mr. Wylie, were he with us today, likely wouldn’t recognize it. The changes began even before President Trump decided to run for President, with the internet, communications technology, social media, enormous infusions of cash, and much more frequent primary challenges–all of which have served to push politicians away from the center and move them toward the edges, where they are less likely to be questioned by the far wings of their parties. That is true of both Republicans and Democrats, and it is highly notable in Ohio, where moderate Republicans and moderate Democrats have become a vanishing breed.

J.D. Vance once spoke out against President Trump, but when Vance decided to run for Senate he (and most of the other Republicans seeking the nomination) positioned themselves for Trump’s endorsement, figuring that the former President carried Ohio twice, with surprising margins. With the Republican nomination now secured, will Vance move back toward the center? I think the center still exists in Ohio, but no one really seems to be trying to find it.

A Supremely Problematic Leak

America was rocked today by the news of the leaked Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization, the case addressing the continuing vitality of Roe v. Wade. The leaked document was a draft of an opinion written by Justice Alito that would–if ultimately issued–reverse Roe as wrongly decided, and leave abortion rights to be decided by state legislatures.

The views on both sides of the abortion debate are so heated it’s impossible to fully set them aside to focus on the fact of the leak itself. But the leak deserves attention in its own right, regardless of which side of the Roe debate you are on. Although there have been leaks at the Supreme Court, those instances are rarer than hen’s teeth. The Court is used to conducting its deliberations and opinion-writing in complete secrecy, with no indication of its decisions outside of the tiny universe of Justices and their clerks until the Court’s opinion on a matter is publicly announced to the public. There is good reason for that rule of strict confidentiality: the Supreme Court routinely handles cases of enormous importance, and any kinds of leaks could have far-reaching political, economic, and social consequences–just as the leak of the Dobbs opinion did.

The idea that someone leaked a draft Supreme Court opinion under these circumstances is horrifying to those of us in the law profession. A tweet from SCOTUSblog, a non-partisan website that carefully covers every case before the Supreme Court, aptly captured the reaction of many: “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.” Chief Justice Roberts echoed that sentiment in the statement he issued today, which noted: “Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court. This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.”

The Chief Justice has ordered the Marshal of the Supreme Court investigate the source of the leak, which is absolutely the right thing to do. We don’t know yet who leaked the opinion, but it’s clear that their intent was to manipulate the decision of the Dobbs case, the votes of Justices, the terms of the Court opinions, and the political and public reaction to a potential reversal of Roe. The Chief Justice vows that the work of the Court “will not be affected in any way” by the leak, and states: “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” But what’s troubling here is that someone–a clerk, an employee, or even a Justice on the Court–attempted to exert extrajudicial influence on the Court in the first place. That prospect is extremely unsettling, because if someone thought it was appropriate to leak the draft of the Dobbs opinion, what’s to prevent leaks in the future of opinions in cases involving redistricting, or presidential powers, or the death penalty, or any of the other hot-button issues that the Court regularly addresses?

I would make one final point: although the Court typically keeps virtually everything about its operations confidential, I think it is important for the Court to disclose any findings the Marshal makes about who did the leaking, and why. The role of the Supreme Court is essential to our constitutional system, and leaks erode the trust that is one of the Court’s most powerful attributes. The public deserves to know who–as the Chief put it–tried to “undermine the integrity” of the Court’s operations.

To Appeal, Or Not To Appeal

The Biden Administration is weighing a tough decision: whether to appeal the federal court decision striking down the mask mandate the federal government imposed on air and train travelers during the COVID pandemic. It’s a very tough decision on both legal and political grounds.

According to news reports, the Justice Department will appeal the court ruling if the CDC decides that the mask mandate is still necessary to protect public health. That’s a bit strange, in a way, because the CDC decided only last week, just before the court ruling, that the mask mandate should be extended for an additional 15 days, until May 3, to allow the CDC to assess the impact of yet another COVID subvariant. It seems as though the DOJ is punting the decision to the CDC and, perhaps, hoping that the CDC will change course, decide that public health now doesn’t require an extension, and allow the DOJ to cite that determination in electing not to appeal. In the meantime, the DOJ won’t pursue an immediate stay of the federal court’s decision, which means that the mask mandate won’t be enforced unless and until an appeal occurs and the appellate court rules to the contrary.

The legal and political stakes in the decision on a potential appeal are high. Legally, the issue is whether the federal government wants to take the risk that a higher court will agree with the district court judge and establish a firmer precedent that the CDC doesn’t have the kind of sweeping power it has exercised over the past two years. Some people describe the district court decision as a poorly reasoned “legal disaster,” while others contend it is a reasonable interpretation of statutory text that simply was not intended to authorize an administrative agency to unilaterally impose nationwide mask mandates. Regardless of how you come out on that issue, for now the decision is simply the opinion of a single district court judge. If an appeal occurs, the federal government runs the risk of an adverse decision by a federal court of appeals and, potentially, the Supreme Court–raising the possibility that, if the nation’s highest court agrees with the federal district court judge in this case, the CDC’s ability to issue future public health mandates could be eliminated, unless and until Congress decides to amend the statute to clarify what is permitted.

Politically, the stakes are equally high because there are strong feelings on both sides of the masking issue. News reports in the wake of the federal court decision reported pro and con comments from travelers about the decision, while videos of cheering passengers removing their masks mid-flight appeared on social media. Whatever decision the federal government makes is likely to upset one faction or the other, leaving the Biden Administration at risk of being labeled irresponsible in its stewardship of public health, or a lily-livered adherent to pointless governmental paternalism. No politician would be happy about either of those outcomes. On the other hand, if the CDC suddenly decides that, under the current circumstances, the mask mandate is no longer needed to protect public health, it has provided the Biden Administration with some political cover–and those who want to wear masks will of course be permitted to do so.

It would be interesting to know whether, behind the scenes, the Biden Administration is encouraging the CDC to move in one direction or another. It’s hard for politicians to restrain themselves from politicking. We’ll never know for sure, because if that information came out it would undercut the depiction of the CDC as the neutral, objective, apolitical entity that is focused solely on scientific and medical evidence and the public health.

Celebrating “Trolling”

If, like me, you’ve got the ESPN app on your phone, you’ve undoubtedly seen some kind of notice lauding such and such team or player for crushingly “trolling” another with some devastating putdown that bursts their bubble. Of course, it’s not just sports stars and their teams that engage in trolling–you see it in politics and other areas as well. And there, too, “trolling” is often applauded.

“Trolling” is an apt term for this practice, conjuring as it does the creature living and lurking in the shadowy, dark, dank areas under the bridge–scary, creepy, and disconnected from the rest of society, but always ready to spring up when you least expect it. The derivation of “trolling” in its modern sense isn’t a reference to Norse mythology, however, but rather to a fishing technique: “trolling” occurs when the angler puts a baited line in the water, hoping that a fish will bite. That’s what internet or social media trollers do. They say something outrageous and provocative, and hope that someone will engage and they can display all of their powers of insult humor, ironic commentary, and smart-alecky know-it-allism.

“Trolling” isn’t kind or polite behavior. It’s snotty and snarky and over-simplifying. You wouldn’t countenance it from your kids at home, and you wouldn’t hang around friends who engaged in it all the time. So why do ESPN, political website, and other internet and social media outlets celebrate trolling comments, and encourage those people under the bridge to emerge? How are we ever to de-coarsen our society if we’re constantly patting people on the back for a “perfect” or “hilarious” trolling effort?

It’s weird to think we’ve reached the point where some people aspire to be great trolls. They’re not exactly aiming high.

No Enemy But Time

Yesterday the United States Senate voted unanimously to make Daylight Savings Time permanent. If you wondered whether our fractured political bodies could ever agree on anything significant, there’s your answer: in the Senate, at least, Democrats and Republicans alike share a common position on time itself.

Of course, “Daylight Savings Time” is an appealing, but ultimately misleading, name. “Springing ahead” doesn’t actually “save” any daylight, it just shifts it from the morning to the afternoon. There will still be the same amount of sunlight on the shortest days of the year; the only issue is when you want to to experience it. The Senate has cast its lot with the afternooner lobby, which has been making constant inroads on our “Standard time” period over the past few decades, leaving it shorter and shorter. If the House follows suit, and President Biden signs the legislation, the change to permanent DST will literally leave “morning people” in the dark for an hour longer during the winter months.

What would it mean, practically? Well, we wouldn’t have to fiddle with changing our clocks anymore. But if you live in Columbus, or anywhere else that is on the western edge of a time zone, you will experience exceptionally dark mornings during December and January. A Google search reveals that the sun rose in Columbus at 7:50 a.m., Eastern Standard Time, on December 21, 2021, the shortest day of the year–that is, the day with the least amount of sunlight. The shift to permanent DST would mean that the sunrise wouldn’t occur until 8:50 a.m. If you’re someone who’s got to clean snow or ice off your car to get to work, you’ll be doing it in the pre-dawn blackness, and it will feel colder.

The “daylight savings” versus “standard” time debate used to be a contentious one, with farmers, people working first shifts, other early risers, and people worried about kids going to school in the dark lining up on the standard time side. But the political winds have shifted, and we’ve become more of an end of day society that simply isn’t awake to enjoy those first rays of sunshine in the early morning Standard time hours. The fact that the Senate unanimously approved the change tells you all you need to know.

Bringing Different Forms Of Diversity

Much has been written about how Judge Ketanji Brown Jackson, if confirmed by the Senate, would become the first Black woman to serve on the U.S. Supreme Court. Less has been said about the other diversity elements that Judge Jackson would bring to the Court–diversity elements that I think also are important.

Judge Jackson would be the first former federal public defender to become a Supreme Court Justice, and she also served for a number of years as a federal district court judge. These are significant points of experiential diversity. Public defenders are a key part of the criminal justice system. Judge Jackson’s work in that role is bound to inform her thoughts on criminal justice issues that may come before the Court, such as prosecutorial misconduct, setting bail, and sentencing. Similarly, Judge Jackson’s years spent supervising a district court docket–conducting jury trials and bench trials, deciding motions in civil and criminal cases, resolving evidentiary disputes, and making her own sentencing decisions, among other activities–will give her a practical perspective on those issues that will be helpful to the Court and that are not possessed by those Justices whose pre-Court resumes don’t include those kinds of experiences.

I’m a big proponent of diversity in all forms, including the diversity of viewpoint that can be shaped by direct, hands-on experience and observation. Supreme Court decisions that are informed by a Justice’s practical experience are bound to result in the articulation of more knowledgeable, workable rules that are meant to apply to the everyday workings of the American judicial system. If the Supreme Court were to consider, for example, the issue of how district courts must address a particular issue, I would expect Judge Jackson’s boots-on-the-ground views on that issue would be persuasive to other members of the Court. Even if her opinion on the issue didn’t command a majority, the discourse will inevitably help to shape a better, sharper, and more focused approach.

I’ll be interested in seeing whether the confirmation hearings on Judge Jackson will address these additional points of diversity, and in the future I’ll continue to hope that Presidents consider other yet other forms of diversity in making Supreme Court nominations. For example, it would be nice to see more nominees from non-Ivy League law schools, and more nominees who did not serve as Supreme Court clerks. (Judge Jackson is a Harvard Law graduate and clerked for Justice Breyer, whose retirement allowed her nomination.) Those of us who went to other law schools and didn’t obtain Supreme Court clerkships would like to think we’ve still got a shot.

Casual Disobedience

I spent a lot of time in downtown Columbus today. Columbus is one of those cities where a mask mandate imposed by the Mayor has been in effect for months–since September 2021 and the early days of the Delta variant, in fact. (Who out there even remembers the dreaded days of the Delta variant? It seems like ancient history, doesn’t it?)

But today, the mask mandate was largely ignored. Many of the people I saw in downtown buildings weren’t masked up. And what was striking was the casualness of it all. People weren’t loud and proud about their de-masking or, so far as I could tell, consciously trying to make a political statement by walking inside buildings with a mask-free face. Instead, it was an utterly unceremonious thing–as if the maskless just decided that they had had enough, and weren’t going to go along with the mask requirements any more.

People in Columbus have been talking about when the Mayor is going to lift the mandate and allow residents to enter buildings without masks–which has been the rule in most of the surrounding suburbs and in many other Ohio cities. If I were the Mayor, and had been in downtown Columbus today, I would be thinking about lifting the edict sooner rather than later. It doesn’t do any good to issue directives if they are going to be casually ignored, and it seems pretty clear that that is what is happening here. Trying to keep the mask mandate in place when people are routinely ignoring it is fighting a losing battle–and what politician wants to do that?

In A State Of Constant Stimulation

As we approach the two-year anniversary of the initial governmental shutdown orders of 2020–and are still dealing with the various variants of COVID-19–some members of Congress are back to considering whether more “stimulus” efforts should be undertaken, and a two-year-old Change.org petition calling on the federal government to send out $2,000 monthly “stimulus” checks to all Americans has passed the 3 million signature mark.

The initiators of the petition contend that, even after two years of various “stimulus” payments, the $2,000 monthly checks are needed because of uncertainty about what could happen if the government orders a new round of closures, if schools require remote learning, or if other disruptive events occur. The article linked above quotes the initiators of the petition as saying that signers are trying to send a message: “‘We just need certainty. We need to have something we can plan on month after month.’”

In short, for some people what began as an effort to help individuals and businesses while the country dealt with the economic shock of the initial, purportedly short-term “flatten the curve” shutdowns, through “stimulus” checks, enhanced unemployment benefits, and readily available business loans, has morphed into a quest for guaranteed, federally funded monthly income that would apparently extend into the indefinite future. When you reach that point, it can’t reasonably be called a “stimulus” payment anymore–unless you accept that our economy now is in need to constant “stimulation,” like a Frankenstein’s monster that is forever being zapped with high-voltage electricity in order to keep going. And such a budget-busting monthly payment obviously would have significant inflationary effects and other long-term consequences for the economy generally and the labor market specifically.

An interesting point is that the primary stated reason for the requested monthly checks is the impact of governmental decisions, like closure orders and requirements for virtual schooling from home, on individuals and families. Perhaps the real lesson from the petition isn’t that some people would like to continue to get governmental checks–that’s really no surprise–it is that governmental entities need to think twice about consequences before issuing new sweeping and disruptive orders after two years of COVID edicts.

Better Late Than Never

Every once in a while you read a news story that really surprises you, because it addresses something that you would have bet had been resolved long ago. I had that reaction when I read about the Federal Reserve Board’s recent decision to ban ownership of individual stocks and restrict trading activity by senior Fed officials.

The Federal Reserve, as the nation’s central bank, often takes action that can affect the securities markets–whether it includes decisions about interest rates, tightening or loosening the money supply, or buying or selling bonds to try to ensure market liquidity or shore up the balance sheets of large financial institutions. Anyone who follows the financial markets knows that daily market movements, up and down, are often attributed to reactions to what the Federal Reserve has done, or said. You would be hard pressed to find any federal agency that has a more direct effect on the financial markets.

The Fed found itself caught in a controversy recently when the news media reported that certain Fed officials were buying and selling stocks while the Fed was taking aggressive action to respond to the financial fallout from the COVID-19 pandemic. Two Fed regional presidents resigned after their trading practices during the pandemic were disclosed.

Under the new rules, senior Fed officials will not be able to own individual stocks, bonds, agency securities, or derivative contracts and will be restricted to holding interests in mutual funds, which they will have to sold for a year. (Mutual funds are viewed as more diversified assets and therefore are less likely to be directly responsive to potential actions taken by the Fed.) And no trading of any kind will be permitted during times of “heightened financial market stress.”

Given all of the regulations that are imposed on every facet of American life, it’s surprising that the restrictions announced by the Fed didn’t exist already. The new rules should remove any temptation or concern about self-interested decisions, but it is also interesting that the rules are self-imposed. It might not be a bad idea for Congress to take a deeper look at the issue, and consider whether there is a need for laws to regulate the securities ownership and trading activities of Federal Reserve officials.

Vote No On Issue 7

In recent years I’ve tried to avoid discussing politics in this blog, but Issue 7, which will be on the ballot in the City of Columbus in November, will have to be an exception to that rule of thumb. It’s an egregious example of misuse of the referendum process, misleading ballot language, and a crass attempt to divert City of Columbus funds into unknown pockets, all rolled into one ballot proposition. If you’re registered to vote in the City of Columbus on November 2, I urge you to get to the polls and vote “no” on Issue 7.

Issue 7 would require Columbus to create four funds–an Energy Conservation and Energy Efficiency Fund, a Clean Energy Education and Training Fund, a Minority Business Enterprise Clean Energy Development Fund and a Columbus Clean Energy Partnership Fund–and would require the city to redirect $87 million in city general funds to fund them. According to the city, two of the funds, worth $67 million, would be transferred to an unidentified group with no legislative oversight, and the removal of $87 million from the general fund would likely require significant cuts in other important city services. Columbus city leaders have spoken out against this attempt to put public funds into private hands and bypass budget processes–all of which could imperil the city’s overall financial health and its bond rating, at a time when Columbus, like other cities, is trying to deal with the many different consequences of the COVID-19 pandemic.

The Columbus Dispatch has also been outspoken about Issue 7, both in reporting on the checkered history of the issue and the lack of transparency about how the millions of dollars in public funds would be used, and by whom, and in editorializing on how the issue attempts to use “green energy” concepts to cover what the Dispatch editorial board calls a “grift.” The editorial describes Issue 7 as “a shameful attempt to confuse well-meaning voters and bilk Columbus out of money that should be used for critical services such as police and fire protection, trash collection, health services, and recreation and parks programs.”

And finally, Issue 7 is an example of an increasing problem in the American system, where standard processes in a representative democracy are being bypassed by ballot issues and referenda that have voters set policy and direct the expenditure of public funds, without the public hearings, scrutiny, and other elements of actions taken by our elected representatives that bring transparency and expertise to decision-making and public spending. And when the ballot issues contain language that obscures rather than enlightens, and seems consciously designed to mislead voters, the problem becomes even greater.

The election on November 2 is an off-year election, when turnout is likely to be small. The group behind Issue 7 no doubt hopes that most voters won’t go to the polls, and those that do will be uninformed about Issue 7 and think that the “green energy” and “clean energy” funds that it would create sound like good ideas, without realizing the true impact of the initiative.

Let’s not be fooled, folks! Let’s get to the polls on November 2 and vote “no” on Issue 7.

The Last Days Of Lobstering?

The people of Stonington are concerned about the future of their community. They aren’t worried about an approaching nor’easter or the remnants of a tropical storm; they’ve survived many of those. Instead, they are worried about federal regulations, designed to protect the endangered North Atlantic right whale, that they are afraid might sink the Maine lobster industry–the industry that supports many of the businesses and households in Stonington, which is the largest working lobster fishing community in Maine.

On August 31, the National Oceanic and Atmospheric Administrative (NOAA) issued final regulations that will close a part of the coastal waters off Maine to lobster fishing from October to January, which is traditionally a lucrative time for those in the lobster trade. And then, by May, lobster fishermen will have to configure their lines and traps to meet other new regulations that are designed to limit the number of lines connecting buoys on the water’s surface to lobster traps on the ocean floor and to weaken the strength of the rope lines, so that any right whale that becomes entangled can break free.

That’s a source of significant disagreement between the Maine lobster industry, on one hand, and NOAA and environmentalists on the other. The Mainers say that lobster lines aren’t responsible for a shrinking whale population and that it’s been two decades since a right whale became entangled in a Maine lobster rope. NOAA says, on the other hand, that since 2017 34 right whales have died and 16 were injured by entanglements or ship strikes. NOAA also adds, however, that at least some of those whales were entangled in Canadian gear, and the Maine lobster advocates point out that the NOAA regulations of course won’t affect Canadian lobstermen while the Maine industry is being punished. The Mainers also grind their teeth when regulators say that they use survey data on “predictive density” of whales to close hundreds of square miles of waters to lobster fishing, when the lobster boat captains who are out on the water every day say the practical reality is that whales really aren’t affected.

And the lobster boat captains also note that the alternative fishing method allowed by the regulations–called “ropeless gear”–uses technology that is admittedly “not mature” and would be enormously expensive for individual lobstermen to implement. In all, the NOAA says that it expects the regulations will cost the lobster industry between $9.8 million and $20 million in the first year, and there is no federal money available to help them. That’s a lot of money for an industry where the front-line fishermen who bait and set the traps, deposit the buoys, and hope for a good catch, are primarily independent businessmen who own and man their own boats. That’s why Stonington’s assistant harbormaster, quoted in the first article linked above, says bleakly: “This will sink a lot of people.”

It’s a classic example of the push-and-pull between industry and environmentalism, except this time the “industry” being affected isn’t faceless corporations, but individual, blue-collar lobstermen, many of whom are from families that have engaged in lobster fishing, using the traditional rope-and-buoy approach, for generations. If the new regulations, which are expected to be challenged in court, stay in place, and those independent boat captains can’t afford to comply with the new requirements, it will take away a huge source of both jobs and year-round revenue that hundreds of families count on. It’s not hard to understand why the locals are concerned that the regulations will dramatically change the Stonington community.

20 Years Later

On this 20th anniversary of the 9/11 attacks, I can’t help but remember that fateful day. Although two decades have passed, the memories of the burning, smoking towers, watching the TV news and seeing the planes converted into missiles to achieve the murderous goals of al Qaeda and Osama bin Laden, and feeling that the whole world was turned upside down, are still fresh and painful. As that terrible morning of shock and horror ended, we were able to go pick up the kids from school, and one of my lasting memories from that day was the immense feeling of relief at getting the kids into the car and bringing them home, where our family could all be together and we could be sure that all of us were safe and secure. I’ll never forget that feeling.

Twenty years is a long time, and today is a time for reflection. A lot has happened in the years since the attacks. America is still here, of course, but there is no doubt that the country has changed in the interim. That shouldn’t come as a surprise. A shock like 9/11 is bound have some long-term consequences, like a colossal rock thrown into a pond causes ripples that ultimately touch every part of the pond’s shoreline. The key point now, in my view, is to focus on where we go from here. The war in Afghanistan is over, and obviously it ended badly. How does the country respond to that reality, and will we finally learn the hard lessons that we have been taught at the cost of twenty years of fighting, thousands of American lives, and billions, if not trillions, of dollars? Or will we forget those lessons the next time a tragedy tempts a President to take the country into another foreign adventure?

And more fundamentally, where is our country headed as a free, democratic society? Just this week President Biden announced that an administrative agency is working on an emergency regulation that is designed to affect the jobs and livelihoods of tens of millions of people who have made a choice to remain unvaccinated and the companies that employ them. Those of us who remember the Schoolhouse Rock song about the process of how a bill becomes a law wonder how in the world the President can presume to exercise such extraordinary power without hearings, amendments, and ultimately a law passed by Congress that specifically authorizes such sweeping action. But in the years since 9/11, we’ve gotten used to Presidents ordering deadly drone strikes, changing policies set by prior administrations, and imposing new obligations with the stroke of a pen.

In a way, has the long road that began with 9/11 led us to this point, where Presidents feel they can unilaterally exercise such vast powers, without the checks and balances that we learned about in Civics class? And, however we may feel about the best way to deal with the COVID pandemic (and for the record, I’m vaccinated), are we comfortable with a form of government where the executive branch, and in many instances unelected administrative agencies, wield all of the power and can issue emergency decrees that would have profound impacts on the lives (and bodies) of millions of Americans, without Congress, as the collective representatives of American citizens and our diverse communities, having voted to require that course of action, set the structure for how the action will occur, established the rules, and determined the penalties for non-compliance? The likelihood that the Supreme Court undoubtedly will ultimately have its say doesn’t make up for the fact that Congress, which was intended to be the primary instrument of government, has withered into insignificance and plays no role in debating and setting such important national policies.

It’s a lot to think about on a quiet Saturday morning, 20 years after a shocking day that we will never forget. But 20 years provides some perspective, and anniversaries are good times for reflection.

An App Too Far

Governments the world over have struggled to address the COVID-19 pandemic. In the United States, we’ve seen large-scale shutdowns of businesses, mask mandates on planes and in buildings, and social distancing and stay-at-home orders. But it is the Land Down Under — Australia — that has really pushed the envelope.

This week The Atlantic carried an eye-opening article about some of the governmental edicts that have been imposed in Australia–edicts so draconian that the article carries the provocative headline “Australia Traded Away Too Much Liberty.” Consider this partial list of emergency decrees and requirements:

  • Australia has dramatically curtailed its citizens’ ability to leave the country. The article quotes a government website (which you can see here) that states: “Australia’s borders are currently closed and international travel from Australia remains strictly controlled to help prevent the spread of COVID-19. International travel from Australia is only available if you are exempt or you have been granted an individual exemption.”
  • Travel between the six states that make up Australia also is restricted. You can access the governmental website that discloses the current restrictions, which include closing state borders, limiting ability to travel within a state, and mandatory quarantines, here.
  • States have imposed curfews, have banned anti-lockdown protests, and have used the military to disperse and arrest anti-lockdown protesters in Sydney and Melbourne. In Sydney, more than five million people have been in lockdown status for more than two months.

But the most draconian requirement of all is being tested and rolled out by the state of South Australia. It’s an app that the state would require its citizens to download, and the Atlantic article describes it as follows:

“People in South Australia will be forced to download an app that combines facial recognition and geolocation. The state will text them at random times, and thereafter they will have 15 minutes to take a picture of their face in the location where they are supposed to be. Should they fail, the local police department will be sent to follow up in person. ‘We don’t tell them how often or when, on a random basis they have to reply within 15 minutes,’ Premier Steven Marshall explained. ‘I think every South Australian should feel pretty proud that we are the national pilot for the home-based quarantine app.’”

It’s a pretty amazing development when a democratic government claims the ability to unilaterally require citizens to download an app, respond to random government texts, and be required to respond within a specified time period with a personal photo showing they are in “the location where they are supposed to be” or receive a visit from the local police. It’s even more amazing that the head of that government actually thinks citizens should be proud that their state government is the leader in imposing that kind of extraordinary government intrusion. I’d like to think that no duly elected government in America would think that kind of action was anything other than an egregious overreach–but then, I would have thought the Aussies would never have done anything like that, too.

There’s obviously a delicate balance between preserving individual rights and liberties and dealing with public health issues. As The Atlantic article notes, Australia’s dramatic decrees can be cited as allowing it to achieve COVID-related death statistics that are far below those in the U.S. But Australia also shows how the balancing of health and rights can tip decidedly to one side, in a way that strikes at the core of freedoms that are a defining characteristic of democratic societies. Citizens of other countries should be looking at what has happened in Australia and asking themselves: “Was it worth it?” and “Could that happen here?”